Posted by Orin Kerr:
Statutes in Exile:
[1]Howard is back, and poses a very interesting constitiutional law
question:
Assume that the [Supreme] Court issues a decision holding that
the U.S. Constitution prevents a State from criminalizing certain
specified conduct (e.g., early term abortion or consensual sodomy).
Later, assume that the Court reverses course and holds that the
U.S. Constitution does not prevent a State from criminalizing that
same specified conduct.
Is the effect of the first ruling to wipe from the books in all
States, or in any States, the laws criminalizing the specified
conduct? Would the second ruling allow States to begin enforcing
the laws that were in existence when first ruling issued that the
first ruling had declared or implied were unconstitutional? Or
would the second ruling require States that wished to criminalize
the specified conduct to pass new laws doing so, even if those
States had identical laws on the books when the Court's first
ruling issued?
Terrific question. I have some vague intuitions about the answer, but
instead of [2]"preening [my]sel[f] in front of the blogospheric
mirror" I think I'll turn this one over to our readers. If any one
knows of a case where this happened or an article or book discussing
this issue, please let us know about it in the comment section.
References
1.
http://www.legalaffairs.org/howappealing/2005_02_01_appellateblog_archive.html#110951889639988936
2. http://volokh.com/archives/archive_2005_02_20-2005_02_26.shtml#1109458672
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